Universal Jurisdiction and the Americanization of International Law? A Flawed Argument

02/06/2016 11:49

Toby Cadman
Barrister at 9 Bedford Row International and the International Criminal Law Bureau and founder of TMC Advisory Group

In 1648 the Treaty of Westphalia put and end to the 'Thirty Years' War and to the long-lasting religious confrontation between Catholics and Protestants in Europe. This treaty, guided by the principle "whose realm, his religion", permitted Princes to determine the religion of their lands without interference of external powers, which is widely perceived as the inauguration the concept of sovereignty. Since then, States were independent and free to regulate their internal affairs and determine their own legislation without external interference, and sovereign States became the primary subject of international law.

A Cosmopolitan Trend

However, international law has experienced a wave of cosmopolitanism during the last few decades. The approval of the Universal Declaration of Human Rights in 1948, the ratification of the Rome Statute establishing the International Criminal Court by more than 120 countries, or the creation of regional systems of human rights protection have blurred the lines between international and national law.

Following this trend, since the end of the Second World War the focus of international law has--although timidly--changed from sovereign States to individuals. The responsibility to protect people from human rights abuses and ensure accountability for atrocities has threatened the traditional concept of sovereignty and justified the international community's interference on the internal matters of individual states where gross human rights violations were committed.
The creation of ad hoc international criminal tribunals, the establishment of the Universal Periodic Review in the UN Human Rights Council, the inauguration of Committees to analyse and review States' activities, and even the imposition of sanctions and the initiation of direct military interventions when atrocities are committed all serve as appropriate examples of this growing cosmopolitan trend.

However, the clearest example of this trend is the principle of Universal Jurisdiction, described as the principle allowing domestic tribunals to exercise--in representation of the international community--criminal jurisdiction to prosecute international crimes committed in any place and regardless of the nationality of the victims and perpetrators.

Therefore, this jurisdiction is based on neither national nor geographical connections with the State of the Courts, but simply on the type of crime committed and its gravity. The international community understood that certain acts, such as torture, crimes against humanity, war crimes and genocide, threatened humanity as a whole and the prevention of these crimes had primacy even over the main concept of international subjectivity: sovereignty. After all, human rights are the 'sovereignty' of the person.

The principle of Universal Jurisdiction has fostered not only the establishment of the International Criminal Court, but also the initiation of judicial proceedings in national jurisdictions against former leaders of sovereign States, such as the Pinochet Case in the United Kingdom, or the Spanish prosecution of Guatemalan officials for the commission of genocide.

An American imposition?

However, some authors have seen in this cosmopolitan trend an imperialist imposition, a process of Americanization of international law. The increasing number of references to US Court decisions, and more importantly, the fact that numerous law students from US elite universities reshape the law of their countries of origin when they finish their studies and return to their national states are considered symptoms of the infiltration of American law in foreign jurisdictions. According to these authors, the expansion of the processes of democratization, constitutionalization and human rights protection respond to an American agenda.

It is true that law and its application is intrinsically linked to power. It is undeniable that powerful States, and particularly, the permanent members of the UN Security Council are de facto unaccountable for their actions. Three of the five permanent members of the UN Secutity Council (United States, China and Russia) have refused to ratify the Rome Statute of the International Criminal Court, and therefore, international crimes committed by their nationals or in their territories are immune from the reach of the International Criminal Court. Further, and more disturbingly, they are able to veto UNSC resolutions to refer other States to the ICC - Syria as a point in case.

These double standards in international law create differential treatment between different States based on national or foreign policy interests. They permit voices to legitimately raise questions about the manipulation of the human rights discourse and of the principle of Universal Jurisdiction to illegitimately interfere in the internal affairs of sovereign States in order to further the political interests of powerful nations.

Recently I was asked to appear on a panel discussion hosted by Russia Today in its topical programme Cross-Talk. The discussion focused on a deeply flawed concept of the 'Americanization of International Law'. The panel host, and at least one of the guests, focused on the conspiratorial theory that American foreign policy and big business has corrupted the notion, and the application, of international law. There was discussion of US military invasions, corporate and banking monopolisation and the expansion of universal jurisdiction by holding foreign nationals accountable in US Courts.

I disagreed with much of what was discussed during the programme. Whilst there may be legitimate arguments as to non-sanctioned military interventions and questionable banking and business practices, the expansion of accountability mechanisms through national courts, where there might otherwise be none can only be a positive step. To ignore such an important legal development is to allow impunity to flourish.

During the discussion there was also talk of the illegality of the US military role in Syria. It was considered that the role of Russia supporting an autocratic regime in Damascus was lawful as it was invited by the sovereign government, despite the fact that there are serious questions over Russian involvement in war crimes by targeting civilians, hospitals, schools and other non-military targets. There was also complete ignorance in the issue of Russia's unlawful annexation of Crimea. Clearly if one only considers the principles it has to cut both ways.

Separating Concepts

There was much confusion during the discussion as two wholly separate concepts: the alleged process of Americanization of international law and the principle of Universal Jurisdiction. Universal Jurisdiction is a principle independent from American politics and law. As a matter of fact, as democracy and human rights, universal jurisdiction is a concept that predates the creation of the American state.

Although Francisco de Vitoria had anticipated the concept of Universal Jurisdiction on several occasions, the first author to establish the first doctrinal definition was Hugo Grotius in the 17th century, in his work 'De iure Belli ac Pacis': "kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever".
The principle of Universal Jurisdiction, far from furthering the particular interests of powerful States constitutes a strong tool to serve individual citizens in the fight against arbitrariness. This principle helps eliminate power inequality between nations, as its only reference is the gravity of the crime committed, regardless of the political strength of the person who committed it.
It is true that the trends of cosmopolitanism tend to be led by the countries dominating the international political arena, but it is the work of the international civil society to use the cosmopolitan tools at our disposal to fight against the impunity and double standards of the powerful nations of the world.

Our next challenge is to ensure equal accountability for all the world leaders and make permanent members of the UN Security Council ratify the Rome Statute. Because, contrary to the abovementioned voices, Universal Jurisdiction is not an instrument to further imperialist interests of certain powerful nations, but to fight against them.